Orndoff v. Rowan

• Decision Date: 24 October 1972
• Docket Number: No. 13100,13100
• Court: West Virginia Supreme Court
• Parties: Mary Bell ORNDOFF and Lewis Orndoff v. Teddy ROWAN and State Farm Mutual Automobile Insurance Company.

Page 220

192 S.E.2d 220

156 W.Va. 205

Mary Bell ORNDOFF and Lewis Orndoff v. Teddy ROWAN and State Farm Mutual Automobile Insurance Company.

No. 13100.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 19, 1972.

Decided Oct. 24, 1972.

Syllabus by the Court

1. 'Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.' Point 5 Syllabus, Overton v. Fields, 145 W.Va. 797 (117 S.E.2d 598).

2. 'An instruction which is not supported by the evidence should be refused.' Point 3 Syllabus, Lilly v. Taylor, 151 W.Va. 730 (155 S.E.2d 579).

3. 'An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.' Point 2 Syllabus, Hollen v. Linger, 151 W.Va. 255 (151 S.E.2d 330).

Oakley J. Hopkins, Morgantown, for appellants.

Farmer & Farmer, George R. Farmer, Jr., Morgantown, for appellees.

KESSEL, Judge:

This case is before the Court upon an appeal by the defendants, Teddy Rowan and State Farm Mutual Automobile Insurance Company, from a final judgment of the Circuit Court of Monongalia County in a civil action instituted by Mary Bell Orndoff and Lewis Orndoff, as the plaintiffs, to recover damages for the personal injuries of Mary Bell Orndoff suffered when she was struck by an automobile, owned by State Farm Mutual Automobile Insurance Company and operated by Teddy Rowan, and for loss of consortium of his wife, Mary Bell Orndoff, by her husband, Lewis Orndoff, and for medical and hospital expenses incurred and to be incurred in the future by the husband, Lewis Orndoff, and for expenses incurred by him for domestic help.

The plaintiffs, the appellees, will be referred to in this opinion as the plaintiffs and the defendants, the appellants, will be referred to as the defendants. Reference to a singular plaintiff or defendant shall mean the parties personally involved in the accident.

The trial court entered judgment upon a jury verdict in the amount of $18,000 in favor of Mary Bell Orndoff and $5,000 in favor of Lewis Orndoff and against State Farm Mutual Insurance Company and Teddy Rowan.

The defendants, in their petition for a writ of error, assign eleven grounds of error. We have condensed them into four, which are as follows: (1) Was it error to refuse the testimony of the city patrolman with reference to the significance of the skidmarks? (2) Was it error to give Plaintiffs' Instructions Nos. 1 and 1--A? (3) Was the defendant, Rowan, not guilty of primary negligence as a matter of law? (4) Was the plaintiff, Mary Bell Orndoff, guilty of contributory negligence as a matter of law? We will discuss the errors in the order mentioned above.

On the day of the accident, the plaintiff, accompanied by a friend, Bessie Fox, traveled from her home in Mt. Morris, Pennsylvania, to Morgantown, West Virginia, for the purpose of seeing Dr. Hugh Thompson for a scheduled physical examination and doing some shopping. The plaintiff was in her ninth month of pregnancy at the time, and, following her visit to Dr. Thompson, she and her friend, drove to the S & H Green Stamp Store, which is located on University Avenue in Morgantown. After having made some purchases at the stamp store, the plaintiff and her friend walked down University Avenue to the intersection of Court Alley, sometimes called Court Street, and University Avenue and proceeded to attempt to cross the street to the opposite side where the Plaid Stamp Store is located.

At approximately 12:33 p.m., on a bright, sunny October day, the plaintiff was struck by an automobile driven by Teddy Clair Rowan, the defendant. University Avenue, at the location of the accident, is a four-lane public highway, which is a part of both the state and city road systems. At the place where the accident occurred, University Avenue has two southbound and two northbound lanes of traffic. The flow of traffic is controlled by traffic lights at the intersection of Walnut Street and University Avenue, which is approximately 200 feet north of the scene of the accident, and at the intersection of Pleasant Street and University Avenue, which is approximately 200 feet south of the scene of the accident. The plaintiff was attempting to cross University Avenue from the western side to the eastern side, the western side being adjacent to the southbound lanes of traffic. University Avenue is forty feet wide at this point with sidewalks thirteen feet wide on each side, making sixty-six feet in all, including the street and both sidewalks. The plaintiff was attempting to cross University Avenue at the point where Court Alley intersects it, starting from the northwestern corner of the intersection of said street and alley. Court Alley is twelve feet wide and has no sidewalks at this intersection.

The defendant testified that he was proceeding down Walnut Street in the far left lane of traffic to University Avenue; that his speed was approximately five to ten miles an hour at the time he negotiated the curve at the intersection; that he increased his speed to approximately fifteen to twenty miles an hour as he proceeded into the far right southbound lane on University Avenue, which is a continuous right-hand turn lane; that after leaving the intersection of Walnut Street and University Avenue, he had a clear and unobstructed view of the lane between him and the scene of the accident; that, when he observed the plaintiff step into the street, he applied his brakes immediately and his car skidded for a distance of twenty-seven feet; that he stopped his vehicle approximately four feet after striking the plaintiff; that he got out of his car and went to the plaintiff; and that the plaintiff said: 'Why didn't I look, why didn't I look'.

The plaintiff testified as follows:

'Well, I walked down then to the corner, and I was observing the traffic--I--I checked the traffic, and the traffic in front of me was sitting still--going north; then I looked up the street, and I looked down the street, and I observed that the light was red at the top of the street, and I started across the street, and I was out in the street about three or four steps, and I just caught something out of my left eye, and I looked up, and Mr. Rowan was coming--and he came at a fast speed, and he startled me, and I started to back up; I thought well, if I--if I go frontwards, he's going to run over me, and I've got to get out of the way; he scared me so bad that I started back, and I had my right foot either on the walk or against it--back against that, and the car struck my left leg right above the knee and knocked it out from under me up--up in here like that, you know--landed on my bottom side--put this leg out straight, and this one across like that.'

On cross-examination, the plaintiff testified that nothing was obstructing her vision and that she thought she 'had a good view'; that the University Avenue traffic light at Walnut Street was red and that the traffic in the two northbound lanes was stationary; that she observed no automobiles in either of the two southbound lanes of traffic; and that she did not remember making any statement to the effect that she had not looked for traffic before entering the street.

Bessie Fox, the friend who accompanied the plaintiff on the trip to Morgantown, testified that, as she and the plaintiff reached the intersection, the plaintiff said "the light is red; there's no cars, and it's a good time to cross." The witness testified that she then looked to see if any cars were approaching, and she and the plaintiff entered the street. In addition the witness testified as follows:

'Q Alright, now, after she told you the lights were clear, what did she then do, do you recall?

A She started to--started to--you know, to the edge of the curb and started to step off the edge of the curb, so--

Q Did she go out into the street?

A Yes, I--I guess, yes.

Q What was the next thing that you observed?

A I was looking either down--south of the street, and I was watching my footing because I wear bifocals, and I always look down--and then I--there was something attracted my attention, and I looked up.

Q And what did you see?

A I saw her with her hands up. I can remember--I could see her pocketbook--and I screamed, and I--I just don't know just what I did, but I screamed. I screamed, if I remember, 'Mary Bell, My God'.

Q Well, did you go to her?

A Well, it wasn't far to go because she was coming back around--you know, towards back where I was.

Q Well--

A But--yes, I got right to her too.

Q What--what transpired? Did she fall completely down on the sidewalk or what--what happened to her when you saw her coming backwards?

A She just started--semi-curve and stepped down--just knocked--set down on the sidewalk.'

John Meister, who witnessed the accident while sitting in his automobile in the left southbound lane of traffic, testified that he was stopped in a line of traffic at the left rear of the defendant's automobile; that traffic in his lane was backed up from the traffic light at the corner of University Avenue and Pleasant Street to the S & H Green Stamp Store; that he saw the two women walking on the vicinity of the stamp store and 'one of them sort of stopped--they--and the other one just stepped right out into the street, and the one lady somehow stayed behind her'; and that at the time she stepped into the street, the traffic was moving in the right lane. He further testified that he got out of his car and went to the plaintiff and that she said: 'I should have looked--or I didn't look at all.'

On cross-examination Meister testified that the plaintiff had moved about three steps before being struck and that he did not observe her attempt to move back toward the curb.

The plaintiff called James L. Lattanzi as...